Lately, our office has noticed a lot of federal indictments where people are being charged with conspiracy, as well as substantive crimes. While substantive crimes are very straightforward (think robbery, possession of a controlled substance, murder), conspiracy to commit a crime is considered a separate indictable offense.
Under federal law, the Government can actually use different statutes to prosecute various conspiracy-related crimes. Generally, though, a conspiracy occurs “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”
Breaking it down, there are a few different elements that the Government must prove in order to get a conviction for conspiracy. First, there must be an agreement between two or more people to do an unlawful act. This first element makes a good bit of sense, since a person cannot conspire with themselves to do something unlawful. The second element is that the defendant knew of the unlawful purpose of the agreement and joined in it to further the unlawful purpose. What this means is that a person knew that the end result of the conduct was going to be unlawful and agreed to participate anyway. The third element is that there must be some sort of overt act in furtherance of the conspiracy meaning that one of the parties must take a necessary step towards trying to conduct the unlawful act.
Lately, there has been many conspiracy cases in the healthcare fraud context, particularly hospice and home health. What some hospice agencies are doing is developing a scheme where they send recruiters out to talk to people. Those recruiters then provide information about the person to the hospice agencies. Those agencies then employ a nurse practitioner, who will either present information saying that the person is hospice eligible to a doctor or provide false medical information to a doctor. The doctor, taking the nurse practitioner’s word (which is allowable under applicable regulations), then effectively signs off on the person being hospice eligible, and the person is admitted into hospice. The hospice agency then bills for services to the person. The typical pattern, though, is that the hospice bills are either for services that were never provided to the person or the person was never actually hospice eligible to begin with.
Typically, once the Government finds out that the person was either not eligible for hospice care or that there was fraudulent billing, it will then indict everyone associated with the hospice for substantive counts of healthcare fraud, as well as conspiracy to commit healthcare fraud. The problem, though, is that while some people associated with the hospice agency (such as the hospice owner, recruiter, and the nurse practitioner) were likely all acting together to defraud the government, others (such as the doctors) did not.
Over the years, the Fifth Circuit Court of Appeals has heard several cases concerning conspiracy. The Court has held that because conspiracy cases are so tricky, the Government can prove a conspiracy existed based on circumstantial evidence, such as a doctor knowing about the unlawful conduct and turning a blind eye towards it while knowing that his role would further the unlawful result. On the other hand, if a doctor never knew of the fraudulent conduct, then that would mean that he could legally not agree to do an unlawful act.
The problem with conspiracy cases is that they are very tricky for the Government to prove unless there is some indication that the various defendants were actually acting in concert and all knew of the unlawful goal. While the Government tends to try and rely on inferences, that reliance has limits. At the end of the day, just like in every case, the defense should look at the key details surrounding the alleged conspiracy, asking themselves if there was actually an agreement or was a particular person an innocent pawn that, though made to be a part of a criminal act, was not a knowing participant.